FOURTH SECTION
CASE OF ISAAK v. TURKEY
(Application no. 44587/98)
JUDGMENT
STRASBOURG
24 June 2008
This judgment will become final in the circumstances set out in Article44 §2 of the Convention. It may be subject to editorial revision.
ISAAK v. TURKEYJUDGMENT1
In the case of Isaak v. Turkey,
The European Court of Human Rights (Fourth Section), sitting as a Chambercomposed of:
NicolasBratza, President,
LechGarlicki,
LjiljanaMijović,
David ThórBjörgvinsson,
JánŠikuta,
PäiviHirvelä,
IşılKarakaş, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 28September 2006 and on 3 June 2008,
Delivers the following judgment, which was adopted on the lastmentioned date:
PROCEDURE
1.The case originated in an application (no. 44587/98) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Cypriot nationals, Mrs Maria A.Isaak, MrIsaakA.Isaak, MrsAnastasiaI.Isaak, Ms Kyriaki I. Isaak and MsAndriani I.Isaak (“the applicants”), on 31 January 1997.
2.The applicants were represented by Mr C. Candounas, MrP.Angelides and Mr A. Papacharalambous, lawyers practising in Nicosia. The Turkish Government (“the Government”) were represented by their Agent, MrZ.M.Necatigil.
3.The applicants alleged that the killing of one of their relatives, MrAnastasios Isaak, amounted to a breach of Articles 2, 8 and 14 of the Convention.
4.The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).
5.By a decision of 28 September 2006 the Court declared the application admissible.
6.The applicants and the Government each filed further written observations (Rule 59 § 1). In addition, third-party comments were received from the Government of Cyprus, whohad exercised theirright to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 (b)).The parties replied to those comments (Rule 44 § 5).
THE FACTS
7.The applicants were born in 1977, 1944, 1951, 1974 and 1979 respectively. The first applicant lives in Ayia Napa and the remaining applicants live in Paralimni. The first applicant is the widow, the second and third applicants are the parents and the fourth and fifth applicants are the sisters of Mr Anastasios (Tassos) Isaak, a Greek Cypriot, who died on 11August 1996.
8.The deceased, Anastasios Isaak, participated in a demonstration organised by the Cyprus Motorcycle Federation (CMF) that took place on 11August 1996 at several points of the United Nations (UN) buffer zone east of Nicosia, including the area of Dherynia. The demonstration, details of which are in dispute between the parties, was the subject of a report by the UN Forces in Cyprus (UNFICYP)(report of 15 August 1996) and by the UN Secretary General (report S/1196/1016 of 10December 1996).
A.The applicants' version of the facts
1.Background to the demonstration
9.The demonstration was organised by the CMF and was aimed at protesting against the Turkish occupation of the northern part of Cyprus. On 2August 1996 a group of over one hundred Cypriot and other European motorcyclists set off from Berlin and made their way through Europe to Cyprus. Tensions arose when the authorities of the “TurkishRepublic of Northern Cyprus” (“TRNC”) announced that in the event the demonstration took place, they would be organising “counter-rallies” with the participation of the Turkish extremist “Grey Wolves” group and that they would fire at Greek-Cypriot demonstrators. Throughout the relevant period the Government of Cyprus and the competent authorities monitored developments and were in constant consultation with the UN. On 11August 1996, in the morning, following an urgent appeal by the UN Secretary General, a meeting was held under the Chairmanship of the President of the Republic and it was decided to cancel the final part of the rally. Consequently, the President of the Republic made a special plea to the motorcyclists to disperse peacefully.
10.Notwithstanding that plea, on 11 August 1996, a group of motorcyclists and other civilians acting spontaneously proceeded to various points along the UN buffer zone. In the meantime, the Cypriot police had taken tight security measures in order to prevent the motorcyclists from entering the buffer zone.
2.The demonstration
11.Anastasios Isaak was part of the above-mentioned group. He had joined the rally with a friend on his motorbike.
12.At about 2.30 p.m. the motorcyclists, including Anastasios Isaak, arrived at the Dherynia roadblock, where they left their motorcycles and proceeded to cross the National Guard ceasefire lineon foot, after breaking through the police and UN cordon. The demonstrators, who were unarmed, entered the buffer zone.
13.Behind the ceasefire lineof the Turkish forces, a mob gathered, comprised of Turkish-Cypriot and Turkish civilians, many of them carrying hunting rifles and air guns, iron bars, wooden sticks, batons, stones and catapults. There were also many Turkish soldiers and “TRNC” policemen armed with automatic and other military weapons. According to the report by UNFICYP,the Turkish forces allowed about 1,000 persons in buses to pass through their 3 km military zone and assemble there. Some of them belonged to the “Grey Wolves” organisation.
14.Between approximately 3p.m.and 3.30 p.m.many stones were thrown on both sides. Shots were fired against the Greek-Cypriot demonstrators, some of whom suffered injuries as a result.
15.Between 3.30 and 4 p.m. the mob in the occupied area entered the buffer zone. They were armed with long sticks, batons and iron bars. At approximately 4.30 p.m. a group of the Turkish mob, together with uniformed policemen, managed to isolate several Greek-Cypriot demonstrators whom they started beating. A group of about 15-20 persons, including five uniformed policemen, surrounded Anastasios Isaak, who had been isolated in the buffer zone and was unarmed. Anastasios Isaak was thrown to the ground after having being chased. During a period of approximately five minutes he was kicked and beaten continuously on every part of his body and his head with metal and wooden batons. There were in total eight “TRNC” police officers in the vicinity.
16.When the UNFICYP police officer Frank Flood tried to intervene and started pushing some of the attackers away, Anastasios Isaak was already unconscious with blood coming out of his mouth and nose. Officer Flood was also attacked from behind. According to Officer Flood's statement (see paragraph 29 below), there had been approximately twelve people surrounding Anastasios Isaak at that moment, including a number of uniformed policemen. When the attackers eventually moved away, Officer Flood tried to trace signs of life. As the officer stood up, one of the attackers threw a large stone at Anastasios Isaak's head. This struck Anastasios Isaak on the right hand side of his head, causing him to jerk. The attacker then ran away.
17.UNFICYP officer Sergeant Lorraine Stack, who had been helping out another Greek-Cypriot demonstrator a few metres away, went to Officer Flood's assistance. The two UNFICYP officers then dragged AnastasiosIsaak's body to the area controlled by the Cypriot Government. Greek-Cypriot demonstrators then took the body and put it in a car. The car was driven towards the guard room of the National Guard and AnastasiosIsaak was transferred to ParalimniHospital. On the way to hospital Anastasios Isaak had no pulse and was not breathing, despite the efforts of the medical staff in the ambulance. At the hospital the doctors' efforts to revive him continued but to no avail. Anastasios Isaak was pronounced dead at the hospital. His body was then transferred on the same day to Larnaca GeneralHospital.
3.The investigation into the killing
18.On 12 August 1996, members of the police, escorted by members of UNFICYP and State pathologists Mr P. Stavrianos and Mr S.Sophocleous, visited the scene of the incident and carried out an examination. During this examination several exhibits were photographed and recorded on video by the police. UNFICYP Sergeant Dale Roberts examined the scene of the incidentand detected drops of blood stains on the ground and on a stone. Various objects were found such as glass marbles, metal bars, shotgun cartridges, wooden sticks, blood stains on a rusty metal can and plate fragments,which were all taken as exhibits. Soil stained with blood was also recovered for further examination.
19.On 13 August 1996 Professor Peter Vanezis, from the Department of Forensic Medicine and Science of Glasgow University, arrived in Cyprus to perform the post-mortem examination. On the same day and before the post mortem, Professor Vanezis visited the scene accompanied by State pathologists Mr P. Stavrianos and Mr S. Sophocleous and members of the police. The team was escorted by members of UNFICYP. During the examination further exhibits were found, such as blood stains, a bloodstained piece of wood and a piece of piping. All the exhibits were photographed and recorded on video by the Cyprus police.
20.On the same date a post-mortem examination was performed by Professor Vanezis, assisted by two State pathologists. Members of the police and UNFICYP were also present. The entire process of the examination was photographed and recorded on video. During the examination various exhibits were taken by Professor Vanezis, which were later delivered by the police to him in Glasgow for further laboratory analysis.
21.According to the post-mortem examination, the cause of death was multiple blunt trauma to the head. The same conclusion appeared in the preliminary post-mortem report issued by Dr M. Enk of UNIFCYP and also in Professor Vanezis's final report issued on 17 September 1996. Furthermore, according to the report issued on 9 September 1996 by DrJohn S. Oliver, Senior Lecturer in Forensic Medicine (Toxicology) in the Department of Forensic Medicine and Science of theUniversity of Glasgow, the results of the analysis of the blood and urine samples of Anastasios Isaak for alcohol and drugs were negative.
22.The forensic examination carried out by UNFICYP found that the blood on the rusty can, on the stone, in the soil and on the shirt worn by Officer Frank Flood during the incidents belonged to the same blood group as that of Anastasios Isaak.
B.The Government's version of the facts
1.Background tothe demonstration
23.The demonstration was organised by Greek Cypriots as an alleged motorcycle rally and began on 1August 1996 in Berlin. This rally was actively supported by the Greek-Cypriot authorities and had extensive media coverage. The aim of the rally was to forcibly enter the buffer zone, cross the ceasefire line and enter “TRNC” territoryillegally in order to meet at the most northerly town of Kyrenia at all costs. As a result of the aggressive conduct of the organisers, tensions arose on both sides of the border. The Greek-Cypriot administration did nothing to prevent the rally in spite of appeals by the Turkish-Cypriot side and the UN Secretary-General. In view of this, the Turkish-Cypriot side announced that it would stop such provocative, hostile and aggressive action at its borders in order to prevent danger to the lives and properties of its citizens.
24.Upon representations from UNFICYP as to thepossibility of such demonstrations having serious consequences, the President of the Republic of Cyprus issued a statement on 11 August 2006 declaring that the demonstrations had been prohibited and appealed to the demonstrators to disperse. Acting upon this, the Turkish-Cypriot demonstrators started to disperse peacefully.
2.The demonstration
25.Nonetheless, on 11 August 1996, Greek-Cypriot demonstrators were involved in violent incidents at various places along the ceasefire lines within the UN buffer zone. Over a thousand Greek-Cypriot motorcyclists and demonstrators arrived at Dherynia escorted by the Greek-Cypriot police. The latter allowed the demonstrators to advance and to enter the UN buffer zone up to the border with the “TRNC”. The UN personnel were unable to prevent the demonstrators'unauthorised entry into the buffer zone and to keep them under control.The situation then got out of controlas Greek-Cypriot demonstrators threw stones and missiles and fired towards the counter-demonstrators. Skirmishes took place between the Greek-Cypriot mob and a group of Turkish-Cypriot counter-demonstrators, when the former crossed into the buffer zone and consequently into the Turkish-Cypriot-controlled area.
26.As a result of the clashes both Turkish-Cypriot and Greek-Cypriot demonstrators were injured. Anastasios Isaak was the leader of the group of Greek Cypriots who had entered the UN buffer zone and approached the barbed-wire fence at the TurkishCypriot ceasefire line at Dherynia shouting abuse and throwing stones from close range at a line of Turkish-Cypriot policemen on the other side of the fence. One of the stones hit a policeman who was wounded on the temple and fell to the ground, bleeding profusely. It had not been possible for the Turkish-Cypriot police to prevent Turkish-Cypriot groups of civilians from entering the buffer zone to pursue the Greek Cypriots. The Turkish-Cypriot policemen also entered the buffer zone to bring back the Turkish Cypriots who had already gone into that area. However, Anastasios Isaak, who was a strong and well-built man, continued his aggressive attitude against the Turkish-Cypriot group, including the police, throwing stones and hitting them with a stick. Skirmishes continued between the Greek-Cypriot and the Turkish-Cypriot demonstrators, resulting in the unfortunate death of Anastasios Isaak, who had become entangled and trapped in spiral barbed-wire barriers that had been put up temporarily by the UN force and had prevented his escape from that area.
C.Documents and materials submitted by the parties
1.Documents and materials submitted by the applicants
(a)Report by UNFICYP concerning the demonstration
27.In its report of 15 August 1996 UNFICYP set out the facts concerning the demonstrations held on 11 August 1996. The relevant extracts read as follows:
“8. The most serious incident took place in Dherynia. On Sunday morning, a peaceful demonstration by some 250 Greek Cypriots took place. They entered the United Nations buffer zone and requested to deliver a petition to the Turkish-Cypriot checkpoint. When the latter refused to receive the petition, the demonstrators left the United Nations buffer zone, but remained in the area. At 14.30 hours, some 300motorcyclists together with some 700 persons in vehicles escorted by Cypol [Cyprus police] arrived at the NG [National Guard] ceasefire line checkpoint in Dherynia. Cypol deployed along the NG ceasefire line but left the checkpoint unattended, thus enabling the demonstrators to enter the United Nations buffer zone unimpeded.
9. In the meantime, the Turkish forces had allowed some 1,000 persons in buses to pass through their 3 km deep military zone and to assemble along the TF [Turkish Forces] ceasefire line, including persons carrying the flag of the Grey Wolves who had come from Turkey.
10. The situation soon became violent, after Greek-Cypriot demonstrators entered the buffer zone and approached the TF ceasefire line to provoke the TF, the TCPE [Turkish-Cypriot Police Element] and demonstrators assembled there with verbal abuse and throwing stones. Cypol was not effective in controlling the Greek-Cypriot demonstrators.
11. At about 16.00 hours, the Turkish Forces allowed the Turkish-Cypriot demonstrators to enter the United Nations buffer zone armed with bats and iron bars. The Turkish-Cypriot demonstrators, joined by the Turkish-Cypriot Police, proceeded to pursue the Greek Cypriots and mercilessly beat all those who they were able to catch. At the same time, there was shooting, including by Turkish-Cypriot police, from behind the Turkish Forces ceasefire line towards the Greek-Cypriot demonstrators.
12. During this period, a Greek-Cypriot demonstrator, Anastasios Isaak, was beaten to death by a number of Turkish-Cypriot demonstrators, including three Turkish-Cypriot policemen. By 18.00 hours the situation began to calm down. In addition to the one dead, it was reported that some 54 Greek Cypriots and 17 Turkish Cypriots were injured. 12 UNFICYP personnel suffered injuries.
13. The UNFICYP investigation revealed conclusively that the killing of AnastasiosIsaak had occurred some 50 metres from the scene shown on television in which three Greek Cypriots were being severely beaten by Turkish-Cypriot demonstrators while helplessly entangled in barbed wire. Two UNFICYP Irish Civilian Police had done their best in trying to rescue Anastasios Isaak at considerable personal risk.
14. The two United Nations Civilian Police had observed two Greek-Cypriot demonstrators being set upon by two groups of Turkish-Cypriot demonstrators who proceeded to beat them with brutal force. The two United Nations Police went to the assistance of one of the Greek Cypriots and managed to facilitate his escape. When they turned to the second Greek Cypriot (Isaak), and were finally able to push aside the Turkish Cypriots, including three Turkish-Cypriot policemen, who were still beating him, it was too late. The location of the killing inside the buffer zone was about 95 metres from the National Guard ceasefire line and about 32 metres from the Turkish Forces ceasefire line.